‘Gotta be the solution to this pollution’ – a rather precarious balancing exercise

March 1st, 2023

Mukuru Financial Services (Pty) Ltd and Another v Department of Employment and Labour (2022) 43 ILJ 1171 (WCC)

South Africa (SA) is highly regarded for its ‘commitment to upholding human rights and the rights of asylum-seekers and refugees’ (FC Mukumbang, AN Ambe and BO Adebiyi ‘Unspoken inequality: How COVID-19 has exacerbated existing vulnerabilities of asylum-seekers, refugees, and undocumented migrants in South Africa’ (2020) 19:141 International Journal for Equity in Health). This, in part, ‘make[s] the country an attractive destination’ for migrants, ‘particularly those from the Southern African Development Community (SADC) countries’ (FC Mukumbang, AN Ambe and BO Adebiyi (op cit)).

In Mukuru, the thrust of the Mukuru group of companies’ case was that ‘foreign workers were essential to their business, permitting them to offer clients a service through consultants that were able to communicate with them in their own language and to relate to them on a cultural plane’ (para 4). The companies argued that despite a diligent search, there were no suitably qualified citizens or permanent residents possessing the requisite ‘language skills or the ability to relate on a cultural and ethnic basis’ (para 4). On this basis, the companies applied for a corporate visa under the provisions of s 21 of the Immigration Act 13 of 2002 to enable them to employ foreigners. The Department of Employment and Labour rejected the applications ‘on the basis that the skills were available in the country and that the foreign language requirement was discriminatory to local citizens’ (para 1). The companies applied to the High Court for a review of this decision.

On review, the court’s point of departure was the preamble to the Immigration Act, which it found as having captured the essence of the ‘Gotta be the solution to this pollution’ clarion call of Peter Tosh’s song titled ‘The Poor Man Feel it’ (1981). The court understood the sentiment expressed behind these lyrics as reaffirming the need ‘for the maintenance of the policy connection between foreigners working in the country and the training of South African citizens’ (para 17). While the court accepted that the companies had shown that it is necessary for their business to have persons who speak foreign languages, it found that the inquiry does not end there. The companies needed ‘to demonstrate the fairness of the discrimination’ and ‘ensure that their conduct does not adversely impact … the rights and expectations of South African citizens’ (as stated the preamble to the Immigration Act) (para 16).

The court found that the Immigration Act imposed a duty on the companies to equally address both ‘the need of foreign nationals to work in their establishments in South Africa as well as the training of South African citizens to address that specific need’ (para 20). Ultimately, the companies’ omission of the training of South African citizens as an important consideration was deemed as a serious oversight as it unfairly excluded South African citizens from employment opportunities in SA in favour of foreign nationals. The review application was dismissed.

At the heart of the court’s reasoning was the companies’ failure to redress the socio-economic ills stemming from SA’s past Apartheid regime and the resultant structural unemployment and poverty afflicting the country’s citizens. However, literature points out several factors that present barriers to migrants in accessing formal financial services. Further to the language barriers echoed throughout the companies’ case, one must consider the documentation required by most financial service providers in respect of undocumented migrants and a general lack of trust in the mainstream financial sector as chief among the challenges faced by migrants in this regard. According to FC Mukumbang, AN Ambe and BO Adebiyi (op cit), while some governmental organisations have provided specialised services for refugees and migrants such as coordinating ‘with the major banks of SA’, so they do ‘not freeze the bank accounts’ of undocumented migrants, the International Labour Organization ‘also suggests that governments should include asylum-seekers, refugees, and undocumented migrants in their national income and related policy responses’ (FC Mukumbang, AN Ambe and BO Adebiyi (op cit)). In my view, in order to assist the court with what seems to be a precarious balancing exercise in determining the fairness of the companies’ discrimination, the applicants should have urged the court to consider the inequality exacerbated by existing ‘vulnerabilities of asylum-seekers, refugees and undocumented migrants in South Africa’ in accessing the mainstream financial market against the need to train South African citizens (FC Mukumbang, AN Ambe and BO Adebiyi (op cit)).

Nkosilathi Andrew Moyo LLB LLM (Wits) is a legal practitioner in Johannesburg.

This article was first published in De Rebus in 2023 (March) DR 25.